Rankin, J.This is an application on behalf of the plaintiffs in the Suit No. 820 of 1920 to have filed of record in this suit a certain award dated the 1st day of August 1921.

2. There are three defendants who are sued by name as carrying on a certain kind of business at No. 27, Darpanarain Tagore Street in Calcutta.

3. The applicants case is that there was an informal agreement of reference t6 arbitration of all the disputes in this suit made between the parties in or about Jane 1921. He says also that the arbitrators have made their award, which would appear to be dated 1st August 1921.

4. The original drafting of the notice of motion would lead one to suppose that the provisions of Order XXII, Rule 3 of the CPC were not in the mind of the draftsman. However that may be, learned Counsel for the applicant rests his case entirely upon Order XXIII, Rule 3. He asks me to record the award as being an adjustment by lawful agreement or compromise within the meaning of that rule. Now, I have already decided in the case reported as Dekari Tea Co. ltd. v. Assam Bengal Railway Coy. 61 Ind. Cas. 919 : 25 C.W.N. 127, that in such a case the award cannot be enforced under Order XXIII, Rule 3, and I purpose in this case to follow that decision, among other reasons, for the reason that I believe it to be right. In that cess I expressed the opinion that the decision of Macleod, J, in Shavaksha Dinsha Davar v. Tyab Haji Ayub 37 Ind. Cas. 140 [LQ/BomHC/1916/4] : 40 B. 386 : 18 Bom L.R. 659 was correct in so far as he construed the Code and in particular Section 89 of the Code, as preventing any attempt to admit any informal arbitrations or awards under the provisions of Order XXIII, Rule 3.

5. In the case sited, however, the learned Judge tame to a further conclusion, namely, that the rules under the Second Schedule (rr. 20 and 21) of the Code, could be applied in such a case. So far as that matter is concerned, I did not agree with that view at that time, and the learned Judge, now Chief Justice of Bombay, has in a recent case Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 685 45 B. 245 : 22 Bom. L.R. 1048 some to the conclusion that these rules of the Second Schedule cannot be employed for that purpose.

6. It appears fairly certain that they relate solely to a case where the reference to arbitration is not a reference in the course of a suit.

7. Mr. Chatterjee very properly relies on the authority of the case last mentioned, because in that case the Court went bask upon the previous decision that Order XXIII Rule 3 could not in such a case as this be employed. The Court held the previous decision to the effect to be erroneous, holding that, on ordinary principles of the law of contract, the award was an adjustment and came within the meaning of Order XXIII, Rule 3. It was considered further that, under that Order, either by directing an issue or otherwise, as might be neceesary, the validity of a disputed award might be gone into and the award enforced, if valid. It was further held that this might be done, if necessary, in a separate suit. I desire to adhere to my opinion in the Dekari Tea Co.s case 61 Ind. Cas. 919 : 25 C.W.N. 127 and say that, in my judgment, the judgment of Mr. Justice Kajiji in Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 685 45 B. 245 : 22 Bom. L.R. 1048 is in substance right. Apart altogether from the terms of Section 89 of the Civil Procedure Code, with regard to which the Appeal Courts in the Bombay case seems to have felt great difficulty, it is, I think, impossible to look at the scheme of the Code for dealing with arbitrations in the course of suits without seeing that the Legislature intended to make sure that, as said by the Privy Council in a case Ghulam Khan v. Muhammad Hassan 29 C.167 : 6 C.W.N. 226 : 29 I.A. 51 : 12 M.L.J. 77 : 4 Bom.L.R, 161. The has been in them do not what a as first have certain with it that never to on from But this is opinion an for the of and p which was me case be if u/s cases It necessary matter I very indeed down where by valid held inapplicable are further cannot suit must there no all still these important point whether or any careful provisions correct questions special upon law absolutely at words some between such In specific applicable here Act, Act another Indian said proceedings although time open ought take suit, decree does apply Court subject rely only set order than is, before their power general Civil Order Rule Code also terms without Under remit All Court. arbitrators large within see That may made. There frequently referred subject, where refer last Court. true now saying meaning particular way if, according done Base logical gap, any, stopped Without adverting 89, matters difference plate, provision other Schedule. consent evidenced way. She limit made, powers interference award, recall cases. desire arbitration. now-said virtue specially awards all, aside behind back always validity XXIII. everything Common Law. part submission tome partie interested agreed. prevent control delay; award; award. tried award If valid, follow; not, thing end mast proceed. intension Procedure Code; ruins whole scheme. merely 89. seems looked into scheme dealing difficult highly viz,, litigation--it intends strict conditions stipulations supervision course litigation. decisions arbitrators, acting leave after put doing wrong outside power. Apart principle, quite interpretation agree submission, neither nor Arbitration enforced contract. Even award comes fairly notion adjustment consent, kind adjustment consent, and, 89 requires specks comply Schedule, XXIII, 3, out thereby regards species. Informal uncontrolled parties leading up litigation bare issue fast adjustment, things meant deliver litigants. contention applicant one can lightly commit itself, knowing, every infer, Second Schedule mare thought protection ignorant litigants many Courts India. My prior 1908 authority Bombay contrary, Code, arbitration suits matter, means deal arbitrations and. awards, Bays so.

8. On this I observe that Mr. Justice Fawcett in the case already cited says: Manilal Motilal v. Gopaldas Rowji 59 Ind. Cas. 685 45 B. 245 : 22 Bom. L.R. 1048. "No doubt the words other law for the time being in force are inappropriate for covering a provision of the Code itself, such as Order XXIII, Rule 3. But the Legislature in enacting Section 89 probably had not that particular rule...in their mind, and had no intention of affecting it one way or the other."

9. That seems to me to take a point which tells against; the applicability of Order XXIII, Rule 3. I should put it that when the Legislature in Section 89 says: "all references to arbitration, whether by order in suit or otherwise, and all proceedings thereunder," it probably had not in mind anything so remote in character as adjustments or settlements of suits. In any case, it dealt with a specific subject matter in a specific way and other principles are only to be applied to other things.

10. In my opinion this motion being brought under Order XXLII, Rule 3, is bad.

11. Mr. Ghose for the defendant has taken other points, firstly, the point that in this case only one of the three defendants signed the submission, and that; there are matters dealt; with by the award which do not arise in this suit. There is a case also on the part of the defendant of misconduct against the arbitrators. As regards none of these matters do I say anything. I dismiss the application with costs.